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HomeMy WebLinkAboutProtective Covenants CRESCENT POINTE PROTECTIVE COVENANTS THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS THAT: COUNTY OF BRAZOS § These CRESCENT POINTE Protective Covenants are entered into by CRESCENT POINTE, LTD., a Texas limited partnership. RECITALS WHEREAS, CRESCENT POINTE, Ltd., a Texas limited partnership, hereinafter referred to as "CRESCENT POINTE" has acquired a 137.14 acre tract of land located in College Station, Brazos County, Texas(the "Property");and WHEREAS, CRESCENT POINTE intends to develop the Property as a first class, multi- use commercial development; and WHEREAS, CRESCENT POINTE desires to establish standards for construction and development to ensure a consistency in quality of construction and development in accord with that of a first-class, multi-use commercial development; NOW, THEREFORE, for and in consideration of the mutual benefit and detriments CRESCENT POINTE hereby adopts and subjects the Property described on Exhibit "A" attached hereto to these Protective Covenants. 1. Definitions: The term "Administrator" shall mean CRESCENT POINTE HOLDINGS, INC., or such other person, persons or entity (including but not limited to the Association described in Section 14 below) to whom CRESCENT POINTE HOLDINGS, INC. or its assignee has assigned the powers and duties of Administrator hereunder, from time to time, by written instrument filed for record in the Office of the County Clerk of Brazos County, Texas. The term "building site" shall mean a portion of the Property used or intended to be used as a single lot or parcel. The owner of any portion of the Property may divide such portion of the Property by subdivision, metes and bounds conveyance or filing of record in the Real Property Records of Brazos County, Texas, a designation of separate building sites in which event each portion thereof shall constitute a building site. Further, any owner of two or more contiguous building sites which share a common boundary may aggregate such building sites into a single building site by filing of record in the Real Property Records of Brazos County, Texas a designation of such contiguous building sites as a single building site hereunder. For purposes hereof, no public right-of-way shall be considered to be (or be part of) a building site. 1 2. Uses Permitted: All the building sites within the Property shall be used solely for one or more of the following uses (and any and all uses and services ancillary to such uses): multi-family residential, hotel, motel or similar transient lodging, restaurant, financial institution, retail, office, medical services, institutional, distribution, research and development, and any other use expressly approved by the Administrator. It is anticipated that CRESCENT POINTE or other owners of property that may be subsequently made subject to these Protective Covenants pursuant to Section 20 hereof, shall from time to time upon conveying property subject to these Protective Covenants restrict the use of a building site to one or more of the specific uses authorized in Section 2 hereof. Such restricted use of a specific building site shall prevail over the provisions of Section 2 hereof. All uses shall be subject to all of the conditions set forth in these Protective Covenants. No building site shall be used in a manner which is offensive by reasons of odor, fumes, dust, smoke, noise or pollution, or which is hazardous by reason of excessive danger of fire or explosion. Further, no building site shall ever be used (i) for a business based primarily upon materials or performances that depict, describe or relate to sexual activities, anatomical areas or nudity (including, but not limited to adult arcades, adult bookstores, adult cabarets and adult theaters as defined in Ordinances of the City of College Station, Texas); (ii) for an establishment engaged in the retail sale of alcoholic beverages for either on-premises or off-premises consumption, which establishment derives seventy-five percent (75%) or more of its gross revenue during any twelve month period from the sale of alcoholic beverages, including, but not limited to, bars, lounges, taverns, liquor stores and package stores; provided, however, nothing contained herein shall prohibit the location of a bar or lounge within and ancillary to a hotel, motel or similar transient lodging; or (iii) for drilling for oil, gas or other hydrocarbons or for mineral extraction of any kind or character. Written approval by Administrator of a particular use shall be conclusive evidence of compliance with these Protective Covenants. 3. Plan Approval Required: Prior to construction, addition, or alteration of any building, parking facility or other structure on a building site, four (4) complete sets of building and landscaping plans and specifications, limited to what is necessary to demonstrate compliance with these Protective Covenants (i.e., site plans, parking layout, building layout and elevations, building materials and colors, exterior lighting plans, signage, landscaping and irrigation plans, and site utilities plans, including site electrical, plumbing, and drainage plans or any other plans or specifications specifically requested by the Administrator) shall be submitted to Administrator. All such building and landscaping plans and specifications are hereinafter referred to as the "Plans and Specifications." No building, parking facility, sign or other structure shall be constructed, altered or placed upon any building site until the location, design, and Plans and Specifications for same (including landscaping and signage) shall have been first approved in writing by the Administrator. Plans and Specifications may be submitted and approved as completed rather than submitting and approving all Plans and Specifications as a complete set. The Administrator may promulgate design and construction guidelines for use by owners of the Property. Such design and construction guidelines may be modified by the Administrator from time to time at its discretion subject to the provisions of these Restrictive Covenants. The Administrator, shall, within 30 days after the receipt of each submission of the Plans and Specifications, advise in writing the party submitting the same, at an address specified by such party at the time of submission, of(a) the approval of the Plans and Specifications, or (b) 2 the segments or features of the Plans and Specifications which are deemed by the Administrator to be inconsistent or not in conformity with these Protective Covenants, the reasons for such opinion and suggestions for the curing of such objections. In the event the Administrator fails to advise the submitting party by written notice within the time set forth above of either the approval or disapproval of the Plans and Specifications, the approval of the Administrator shall be deemed to have been given. 4. Construction Standards: Construction, addition, or alteration of any building on a building site shall meet the standards set forth in these Protective Covenants. For the purposes of these Protective Covenants, when a construction material is specified herein, another material may be used in lieu thereof, provided such material is determined by the Administrator to be the equivalent of, or better than, said specified material. All buildings (including any parking garages, service buildings, or other structures) on any building site shall have exterior walls of face brick, stone, marble, anodized aluminum, or permanently finished (in a manner approved in writing by the Administrator in his discretion) concrete and/or glass or of an equivalent, permanent, architecturally-fmished material to finished grade. All exterior finishes and colors shall be approved by the Administrator. No building shall be covered with sheet or corrugated aluminum, asbestos, iron or steel unless previously approved in writing by the Administrator. Sidewalks of design and in location approved by the Administrator must be constructed along the right-of-way of all dedicated streets or if required by the Administrator within the Landscaping and Public Access Easement adjacent to such right- of-way. 5. Building Setbacks: No building or other structure shall be erected (i) nearer than forty(40) feet to any dedicated public street (ii) nearer than fifteen(15) feet to any side property line not abutting a street right-of-way; or (iii) nearer than ten (10) feet to any rear property line not abutting a street right-of-way; provided, however, that the Administrator, in his sole discretion, may approve a reduction to twenty-five (25) feet of the setback for buildings. No building whose use is intended for bulk storage of materials, goods, inventories, or similar items shall be located nearer than thirty(30) feet to any side or rear property line. No garage structure shall be erected nearer than 60 feet to any dedicated public street without the written approval of the Administrator. Other structures shall not include paving, signage and/or related items. 6. Parking: Parking shall he provided, subject to the terms of these Protective Covenants, so as to at all times comply with the ordinances and regulations of the City of College Station, as the same may be amended from time to time. No use shall be made of any building site or any building constructed thereon which requires or is reasonably expected to require or attract parking in excess of the capacity of the facilities maintained therefor on said building site. Parking will not be permitted on any street or at any place other than the paved parking spaces provided in accordance with the foregoing, and each owner and lessee shall be responsible for compliance by their respective employees and visitors. All parking areas shall be screened from view from a public right-of-way with berms, hedges, or other landscaping, consistent with the use being made of the building site, in a manner approved in writing by the Administrator prior to construction or alteration of any building, parking facility or other 3 structure. Unless otherwise approved in writing by the Administrator, parking will not be permitted or located on a building site within twenty-five (25) feet of any other front property line or any property line adjoining a public street right-of-way. No parking, driveways, or other paving shall be located within ten (10) feet of side or rear property lines not adjoining a public street right of way. 7. Utility Lines: All electric distribution, telecommunications, cable or similar lines shall be installed underground except at those locations which the Administrator, in the exercise of his reasonable discretion, shall first approve in writing. 8. Loading Docks: Loading docks will not be permitted to face any public street or right-of-way. Loading docks may face a private street or right of way if previously approved in writing by the Administrator. Provision must be made for handling all freight on those sides of a building which do not face a street or right-of-way. All loading docks must be screened from public view in a manner approved in writing by the Administrator prior to construction or alteration of any building, parking facility or other structure. Notwithstanding the foregoing, the Administrator shall have the right to grant a variance with respect to the strict application of the provisions of this Section 8 provided that the Administrator in his sole good faith judgment determines that the loading docks are sufficiently screened from public view in a manner approved by the Administrator. 9. Landscaping: Two complete sets of landscaping architectural plans must be submitted to the Administrator for written approval prior to commencement of construction on a building site. All open, unpaved space, including but not limited to front, side and rear building setback areas, shall be planted and landscaped. The Administrator will require landscaping of any traffic or parking island located within or at the edges of any parking areas. A sprinkler irrigation system of approved design shall be installed in connection with any newly planted landscaping. Landscaping in accordance with the plans approved by the Administrator must be installed within thirty (30) days following the occupancy of a building or building site. This period may be extended by the Administrator in the event of delays caused by adverse weather conditions or other causes beyond reasonable control. The Administrator shall promulgate landscaping guidelines, which may be modified by the Administrator from time to time in its discretion. 10. Screening: The right of a purchaser, grantee, owner or lessee to use any building or building site shall not be construed to permit the keeping or storing of articles, goods, materials, equipment, incinerators, storage tanks, refuse containers or like items in the open or exposed to public view or view from a public right-of-way or an adjacent building site (as viewed from ground level). If it shall become necessary to store or keep such items in the open or in a manner that could be exposed to public view from a public right-of-way or an adjacent building site (as viewed from ground level), the storage area and items thereon shall be screened from view in a manner approved in writing by the Administrator. The screening shall be of a height sufficient to screen the materials or equipment being stored (in the sole judgment of the Administrator), but in no event less than six (6) feet in height. All storage shall be limited to the rear two-thirds of any building site (as measured from any adjoining public right-of-way) and under no circumstances shall any materials or equipment be stored within sixty (60) feet of any public street. 4 Water towers, storage tanks, processing equipment, stand fans, skylights, cooling towers, heating equipment, air conditioning or ventilating equipment, telecommunications equipment, electric equipment and any other structures or equipment (including that which is located on the roof of any building or on the ground) shall be effectively shielded from view from a public right-of-way or an adjacent building site (as viewed from ground level) by an architecturally and aesthetically sound method which shall be approved in writing by the Administrator before construction or erection of said structures or equipment. Communication towers, whether freestanding or building mounted, must be approved by the Administrator prior to their construction and must be located in the rear one-third of any building site as measured from any adjoining public right-of-way. 11. Signs,Monuments and Flagpoles: All signs shall be in locations and of a design and material approved by the Administrator. No more than one (1) free standing ground or berm mounted permanent sign shall be permitted for each building site, unless a building site has frontage on two or more public streets, in which case no more than two (2) free standing ground or berm mounted permanent signs shall be permitted for such building site Unless otherwise approved in writing by the Administrator, all other signs must be attached to a building and shall be parallel to and contiguous with its wall and not project above its roof line. No sign of a flashing or moving character shall be installed and no sign shall be painted on a building wall. Directional and traffic control signs, and signs advertising the sale or lease of a building site are also permitted upon the written approval of the design and location by the Administrator. No other temporary signs are permitted without the previous written approval of the Administrator. In the event a building has multiple tenants, all tenants may be shown on one of the permitted signs, at the discretion of the owner of the building site. The Administrator shall have the right, and hereby reserves an easement, to enter upon any and all portions of the Property to remove any signs that are in violation of this Article 11 upon reasonable notice to the owner or lessee of such portion of the Property, all at the expense of such owner or lessee. The Administrator shall promulgate sign guidelines (which shall include guidelines for pylon signs, monuments and flagpoles) which may be modified by the Administrator from time to time in his discretion. 12. Illumination: All buildings shall have exterior illumination facilities for their front and side walls of a power and design to be approved by the Administrator prior to commencement of construction, and, upon completion of said building, said illumination facilities shall remain in full operation until twelve (12) midnight each night (subject to compliance with applicable governmental requirements). 13. Maintenance: The owner and lessee of any building site shall have the duty of and responsibility for keeping the premises, buildings, improvements, appurtenances and landscaping in a well maintained, safe, clean and attractive condition at all times and in compliance with these Protective Covenants. In addition, the owner or lessee of any building site shall be responsible for: (i) all maintenance of any property lying between the paved portion of any adjoining public street and the building site, and (ii) until the Association is formed pursuant to Section 14 below, all maintenance and replacement of any landscaping lying within any esplanade in any public street immediately adjoining such building site (within the area of the esplanade that actually fronts the building site). If, in the opinion of the Administrator any such owner or lessee is failing in this duty and responsibility, then the Administrator may give such 5 owner or lessee, or both, notice of such fact, and such owner or lessee must, within a reasonable period after such notice (determined on the basis of the nature of the alleged breach of these Protective Covenants but in no event more than 30 days thereafter), undertake the care and maintenance required to restore said owner's or lessee's building site to a safe, clean and attractive condition, or bring the Property and/or landscaping into compliance with these Protective Covenants. Should any such owner or lessee fail to fulfill this duty and responsibility after such notice, then the Administrator shall have the right and power (but not the obligation) to perform such care and maintenance, or to bring the building site into compliance with these Protective Covenants. In connection therewith, the Administrator shall have the right(but not the obligation), and hereby reserves an easement, to enter upon any and all portions of any building site to perform such work that the Administrator deems reasonably necessary to effectuate the purposes of these Protective Covenants. The owner or lessee (or both of them) of the building site on which such work is performed by the Administrator shall be liable for all reasonable costs of any such work and shall promptly reimburse the Administrator therefor. If such owner or lessee shall fail to so reimburse the Administrator within thirty (30) days after being billed therefor by the Administrator, then such cost shall be a debt of such owner or lessee (or both of them), payable to the Administrator, and shall be a lien against any such owner's or lessee's property. The lien reserved and created hereby is subject only to, and shall be subordinate and inferior to, automatically and without the necessity of another document, any and all first lien purchase money deeds of trust and liens in favor of third party financial institutions or representing bona fide seller financing. The Administrator shall be liable for any actual damages caused to any building site by his entry onto any building site but only if(i) the Administrator has acted negligently in connection with any work performed by it or (ii) such entry was not permitted by the terms of these Protective Covenants. All references in this Paragraph 13 to the Administrator shall include the Association (defined in Paragraph 14) subsequent to its formation. 14. Owners' Association, Assessments and Lien: The Administrator shall right to form, as a non-profit corporation, an owners' association (the "Association") for the sole purpose of enforcing and administering these Protective Covenants. The Association, upon its formation, shall expressly have the obligation to maintain and replace any landscaping lying within any esplanade in any public street within the boundaries of the Property or adjoining any building site. Each owner of a building site shall be a member of the Association with such rights as are set forth in the Articles of Incorporation and Bylaws of the Association. Voting rights for members of the Association shall be determined on the basis of acreage out of the Property owned by each member. The Association shall expressly have the power to levy assessments against land within the Property in amounts which it deems necessary to effectuate the purposes of these Protective Covenants upon a vote of the Required Majority of members of the Association (as provided below). Any assessment shall be levied on a uniform basis against all of the building sites on the following basis: (i) one-half(1/2) of such assessment shall be on the basis of the gross square footage within any building site and (ii) one-half (1/2) of such assessment shall be on the basis of the lineal feet of frontage on a publicly dedicated street which has landscaping maintained pursuant to these Protective Covenants. Any assessments collected by the Association shall be used for one or more of the following purposes as the Association may deem appropriate in its reasonable discretion: planting, landscaping, watering or irrigation, mowing, tree surgery and general upkeep and maintenance of planted or landscaped areas; provision of safety and security measures; enforcement of parking restrictions; enforcement of 6 these Protective Covenants; maintenance of medians, esplanades, sidewalks and easement areas in or adjacent to the Property and property owned by the Association; reimbursement of reasonable costs and expenses of the Association in connection with its operation and management and administration of these Protective Covenants (including but not limited to charges related to engagement of third party architects, engineers, attorneys, accountants and other consultants in connection with administration of these Protective covenants) and such other non-capital items of expense as may be deemed by the Association, in its discretion and good faith, to be necessary or desirable for the carrying out of these provisions and for the general benefit of members of the Association. In no event shall the Association use any assessments for the initial landscaping of any areas within the Property or for any other capital expenditure with an aggregate cost of more than $25,000.00 without a vote of the Required Majority of members of the Association. To secure the payment of any assessments levied by the Association and any other sums due hereunder (including, without limitation, interest, late fees or delinquency charges), a lien is hereby reserved and created in favor of the Association against any building site. The lien reserved and created hereby is subject only to, and shall be subordinate and inferior to, automatically and without the necessity of another document, any and all first lien purchase money deeds of trust and liens in favor of third party fmancial institutions or representing bona fide seller financing. By accepting a deed to a building site, each owner of such building site expressly grants to the Association a lien and power of sale to enforce such lien by foreclosure sale. The Association may institute a suit or proceeding at law or in equity or take any lawful action to enforce collection of any defaulted assessments, including, but not limited to, an action to foreclose the lien reserved and created herein securing any assessments. Any foreclosure may be brought by the Association in the same manner as an action to foreclose the lien of a mortgage or deed of trust on real property in accordance with Chapter 51 of the Texas Property Code or any successor statute governing enforcement of consensual liens on real estate. Notwithstanding the foregoing, at such time as the CRESCENT POINTE HOLDINGS, Inc., its personal representatives, successors or heirs (or any entity or trust owned or controlled by any of the foregoing) no longer own at least twenty-five percent (25%) of the acreage of the Property, any one or more owners of building sites with an aggregate of at least fifty percent (50%) of the acreage of the Property may form or compel the formation of the Association for the purposes stated herein. Such owners shall thereupon send notice of the formation of the Association to all owners of record of building sites as shown by the Brazos County tax assessor's rolls and shall file such notice, signed by the requisite owners of building sites, in the Official Public Records of Real Property of Brazos County. At any time after the formation of the Association the Administrator may assign all or any part of the rights vested in the Administrator by these Protective Covenants, after which time, such rights as may be so assigned shall be fully vested only in the Association, and the Association will expressly be responsible for all duties given to the Administrator by the terms of such assignment. At such time as CRESCENT POINTE, Ltd., its personal representatives, successors or heirs (or any entity, foundation, or trust owned or controlled by any of the foregoing) no longer own at least one (1)acre of the Property, if the Association has been formed prior thereto, such assignment shall take place without the need for action by any party. All approvals and/or variances granted from time to time by the Administrator shall be binding upon the Association and all owners of the Property. 7 15. Termination of Covenants: Each condition and covenant contained in these Protective Covenants shall remain in full force and effect until July 1, 2053, and shall be automatically extended for successive ten (10) year periods; provided, however, that these Protective Covenants shall not be automatically renewed and extended for such successive terms if, prior to the expiration of the initial or any renewal term, the Required Majority of owners of the Property execute and acknowledge a termination declaration, to be effective upon the expiration of the then current initial or renewal term, and record the same in the Official Public Records of Real Property of Brazos County, Texas. The Required Majority of owners of the Property, by written declaration signed and acknowledged by them and the Administrator and recorded in the Official Public Records of Real Property of Brazos County, Texas, may, however, at any time alter or amend the restrictions, conditions and covenants contained herein and this right shall exist as long as the Required Majority of owners of the Property and the Administrator shall so desire. References in these Protective Covenants to a percentage (or fraction) of the acreage of the Property shall be determined by excluding from the numerator and the denominator any portion of the Property that is platted, dedicated or otherwise acquired or used as a public street. 16. Severability: Invalidation of any one or more of the foregoing covenants, restrictions or conditions shall not affect the validity of others of such covenants, restrictions or conditions, all of which other covenants, restrictions and conditions shall remain in full force and effect. 17. Waiver, Variances: Except as expressly provided in these Protective Covenants, the Administrator shall have the right to grant variances with respect to the strict application of any of the provisions contained in these Protective Covenants as to any building site if the Administrator, in his sole good faith judgment, determines that (i) strict applicability of any of the provisions hereof would create a hardship as to the owner of a building site or would make development of a building site difficult or impractical, and (ii)the granting of a variance will not materially adversely affect the Property or the purpose or intent of these Protective Covenants. No such variance as to the applicability of any covenant, condition or restriction shall be construed to be a waiver of such covenant, condition or restriction, or be construed so as to entitle any other party to a variance, as to any other project, development or circumstance. Further, no such variance granted by the Administrator shall be subject to challenge by any other beneficiary of these Protective Covenants, but shall be absolute with respect to the portion of the Property as to which such variance has been granted. No delays in or failure in enforcing these Protective Covenants as to any breach or violation thereof shall impair, damage or waive the right of any party entitled to enforce the same to obtain relief against or recover for continuation or repetition of such breach or violation or any similar breach or violation thereof at any later time or times. 18. Enforcement: 'These Protective Covenant~ are for the benefit of all present and future owners of the Property, and may be enforced by the Administrator, the Association and all present and future owners of the Property. All parties entitled to enforce these Protective Covenants shall be entitled to all remedies at law or equity, including but not limited to injunctive relief, for a breach of these Protective Covenants. 8 19. Required Majority: Until such time as CRESCENT POINTE, Ltd. no longer owns at least one(1) acre of the Property, references in these Protective Covenants to a Required Majority of owners of the Property or of members of the Association, as the case may be, shall refer only to the affirmative action of the CRESCENT POINTE, Ltd. Thereafter, any matters requiring a Required Majority shall require the affirmative vote of owners owning at least seventy-five percent (75%) of the Property or a vote by members of the Association owning at least seventy-five percent (75%) of the Property(exclusive of any public rights-of-way). 20. Additional Property: The Administrator shall have the right to bring within the Property additional property in his discretion. Any additions authorized under this Section shall be made by filing of record in the Real Property Records of Brazos County, Texas, a Supplemental Declaration of Protective Covenants with respect to the additional property which shall extend these Protective Covenants (as therein modified) to such property, executed by the Administrator. Upon such filing, the Property shall include the additional property described in such Supplemental Declaration of Protective Covenants. 21. Approvals by Administrator or Association: Whenever in these Protective Covenants any approval or consent of the Administrator or the Association(once the Association has been formed and the powers and duties of the Administrator have been vested in the Association) is required, such consent or approval shall not be unreasonably withheld or delayed. EXECUTED this day of , 2003. CRESCENT POINTE, LTD., a Texas limited partnership BY: CRESCENT POINTE HOLDINGS, INC., General Partner By: Emanuel H. Glockzin, Jr. President 9 THE STATE OF TEXAS § § COUNTY OF BRAZOS § BEFORE ME, the undersigned authority, on this day personally appeared Emanuel H. Glockzin, Jr., President of CRESCENT POINTE HOLDINGS, INC." General Partner of CRESCENT POINTE Ltd" a Texas limited partnership, known to me to be the person whose name is subscribed to the foregoing instrument, and he acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of said corporation. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , 2003. Notary Public in and for the State of Texas 10